STATE OF NEW YORK SUPREME COURT

In the Matter of

COUNTY OF MONTGOMERY

GEORGE A. AMEDORE, JR.,
Petitioner, -against'

DECISION and
ORDER INDEX No. 2012-887 RJI No. 28-1-2012-0383

GREGORY PETERSON, DOUGLAS KELLNER,
JAMES WALSH, and EVELYN AQUILA,
COMMISSIONERS constituting The New York State Board of Elections; and JAMIE M. DUCHESSI and TERRANCE J. SMITH Commissioners, constituting the Board of Elections for Montgomery County, and C. VICTOR WORK and THOMAS F. TURCO Commissioners, constituting The Board of Elections for Ulster County, and THOMAS J. BURKE and BRENT BOGARDUS Commissioners, constituting The Board of Elections for Greene County, and

(Index No. 2012-969
RJI No. 28-1-2012-0436 consolidated herein)

_^_

.•

MATTHEW J. CLYNE and RACHEL L. BLEDI
Commissioners, constituting The Board of Elections for Albany Count)', and BRIAN QUAIL and ART BRASSARD ^ Commissioners, constituting The Board of Elections 0 for Schenectady County, and MICHAEL J. AMATO, Sheriff of Montgomery County, and The Sheriffs Department of Montgomery County PAUL VAN BLARCUM, Sheriff of Ulster County, and The Sheriffs Department of Ulster County GREGORY R. SEELY, Sheriff of Greene County, and The Sheriffs Department of Greene County CRAIG APPLE, Sheriff of Albany County, and The Sheriffs Department of Albany County DOMINIC DAGOSTINO, Sheriff of Schenectady County, and The Sheriffs Department of Schenectady County, and CECILIA F. TKACZYK, Candidate for the New York State Senate 46th Senate District, Respondents. >*S* - ~y^ -^^ , <2o • -£, —*fj ^~*i -^—§ S ^ 3l'o ~~~~ r~n "~ ^ ^ ~t> ^ -^j£ {~—j. , -, £-— so o ^- ^ °n

ORDERS RENDERED (see endnote1) TOMLINSON, Acting J.S.C. The undersigned Montgomery County Surrogate and Acting Supreme Court Justice was assigned election law cases by Order of the Hon. Vito C. Caruso dated September 5, 2012 for the 2012 primary and general elections. FACTUAL BACKGROUND On Tuesday November 6, 2012, Election Day, during the evening the undersigned was telephoned at home by an attorney inquiring if the Court would be available to hear an Order to Show Cause application, involving an election law proceeding relating to the 46th Senate District Election and in a second call the attorney advised he was making such application. This Court inquired if temporary relief would be requested and if Uniform Rule 202.7 had been complied with and was informed temporary relief would be requested and compliance had not been accomplished which led to the Order to Show Cause application being presented the next morning, November 7, 2012 in Schenectady, New York while the undersigned was hearing a matter in Schenectady County Supreme Court. The application was granted and made returnable that Friday in Montgomery County.

-2-

RELEVANT ORDERS AND PROCEEDINGS On Friday November 9, 2012, at the hearing on the return date this Court Ordered, from the bench and by a handwritten order signed at the conclusion of the proceedings, a schedule for canvassing all election results at all five County Boards of Election. The schedule was principally the result of the candidates' counsels1 agreement, and among other things the Court Ordered that care be taken to protect voter identity and privacy regarding the voting process, the schedule for canvassing suggested by the Candidates' Counsel (the order was physically written by counsel for Respondent with input by counsel for Petitioner) and immediate discovery of requested relevant information from the local Boards of Election, which information was to be provided immediately but not later than 48 hours prior to the time of canvassing in each county. The second phase of the schedule, required canvassing of paper ballots commencing in Albany County on November 19, 2012, and in turn as scheduled in each of the remaining four counties (it should be noted the Governor's Executive Order provided for Hurricane Sandy displaced voters to vote in any county of the state and extended the time for receiving ballots post-marked November 5th through the mails to November 19, 2012, and appears to have had little or no impact in this matter, other than the delay in counting these mailed ballots). The schedule was modified as necessary by Letter-Orders, the first (November 13, 2012) in an effort by the Court to put in place a schedule that might comply with board of election certifying deadlines, including a Saturday December 1, 2012 deadline for certifying state races and a December 10, 2012 date to certify to the Electoral College regarding the PresidentialA^ice Presidential race. Petitioner objected to the modification seeking its recall by letter of November 14, 2012; which application was denied. The schedule was further modified by Letter-Orders (November 19 and 21, 2012) upon the request of, with the input of, and with the consent of or at the request of both
-3-

of the Attorneys for the candidates. Further scheduling letter dated November 30, 2012 issued. Judicial Subpoenas were issued immediately upon application for the same for both sides, beginning on Friday. November 30, 2012, for, among others, Departments of the City of New York including the Department of Housing Preservation, New York City Board of Elections, New York State Board of Elections, twenty-three Postmasters and Officers-in-Charge of various post offices for records involving current mailing addresses, change of addresses and mail forwarding services for numerous voters and addresses in question, as well as the New York State Department of Motor Vehicles, New York State Department of Taxation and Finance, Central Hudson Gas and Electric Corp., New York State Electric and Gas Corporation, Time Warner Cable, Inc., and Verizon Communications, Inc. Additional subpoenas were issued without the Court's knowledge, by Counsel to the candidates including certain ones that resulted in two voters appearing and testifying that they did not live in the particular election district or county, which led to the sustaining of objections to their votes being counted. Other subpoenas were issued, and noted by counsel, the particulars of which are unknown to this Court. As the Court Ordered subpoenas duces tecum material was produced at Court the parties were promptly given an opportunity to review it. The Court required a good faith basis for issuing certain of the subpoenas of Petitioner and some of these subpoenas were modified after applications to quash were made and heard before this Court. No Subpoenas were quashed, but they were limited in time to calendar year 2012 through Election Day, and limited in subject matter to information regarding voter residence address, billing and mailing addresses, forwarding and change of address information and in some cases utility'usage. This Court limited the number of voters for whom this type of information was to be disclosed and ordered that additional matter be redacted or destroyed by Order dated December 10, 2012. The Court itself

-4-

redacted some of the subpoenaed materials for use by Counsel and the Court Attorney Referees, but not all. It does not appear that the subpoenas resulted in any delay in the proceedings notwithstanding the applications to quash, modifications to the subpoenas, redactions, and the granting of additional time for one Corporation to give notice and produce the subpoenaed items. "MACHINE" OBJECTIONS It should be noted that during the first phase of discovery encompassing review of the voting machines, sticks, computer memory, etc., that no objections were made as to them. The only objections involved the "paper" ballots consisting of the absentee, affidavit and special ballots, and applications for them discussed below. THE HEARINGS Hearings on paper ballot objections were scheduled to commence on Thursday, November 29, 2012 and continue on Friday, November 30 and Monday, December 3, 2012 and daily thereafter to completion but both candidate's Counsel repeatedly requested additional time for preparation of legal argument and preparation for hearings on the objections and repeatedly argued that additional time would allow them to resolve issues more expeditiously than trial and there was some evidence of that probability to the court and accordingly the court repeatedly adjusted its calendar but continued to advise them that this was an expedited proceeding and failure to move forward would require appropriate measures by the Court, as the clock keeps ticking (in the first phase of canvassing the Court's letter order put in place an expedited schedule in the event the stipulated schedule was not complied with). Hearing on Schenectady objections commenced Tuesday, December 4, 2012, followed by hearing on Montgomery objections on Wednesday, December 5, 2012, immediately followed by Albany, and at the conclusion of each county's review process the Court issued a bench order

-5-

substantively the same for each county, reduced to writing, directing the procedures for marking exhibits during the ballot opening process to preserve the exhibits for further judicial review. The Court also issued its schedule for Greene and Ulster review (December 7 and 10, 2012). At the conclusion of the Wednesday, December 5 proceedings when the Court granted a mutual request for adjournment until Friday, giving Counsel Thursday to prepare for hearings and to resolve issues that would speed the proceedings, this Court warned counsel, on the record, of the procedures which would be required to complete these proceedings in a timely manner (see December 5, 2012 transcript pages 897-903). On Friday, December 7, 2012 Counsel appeared and requested time to reach agreement regarding some of the objections which was granted. By late morning, when the Court proceeding delayed by Counsels efforts resumed (with agreements made as to Greene Count)' objections, but none made as to Ulster County and Counsel being unwilling or unable to work on the weekend toward resolving the Ulster objections), the Court issued the Supplemental and Amended Order (copy attached) which required counsel to proceed with Greene County as previously set on December 7, to continue until completion and the Ulster County objections were to be heard in Ulster County on Monday December 10, 2012, which date had previously been designated for that hearing, but before two Court Attorney Referees, to speed up the process and to allow the undersigned to preside over and complete the Greene County hearings which included "relocation" issues. (See also letter of December 10, 2012 that was "So Ordered" regarding witness availability, redaction of subpoenaed documents, and further scheduling); "Relocation" issues had also been the subject of testimony involving hearsay and the applicability of an exception to the hearsay rule under statement against interest exception or a state of mind theory. This Court sustained the hearsay objections but allowed a full record -6-

regarding the issue. From the record it is clear that the statements of voters to Petitioner's investigators do not meet the requirements of the exception and from the context in which the statements were obtained even if the Court had allowed the statements they would not prove that the voters were not entitled to vote in the 46th Senate Race (as the voters did). This Court has now ruled, on the record, regarding all of the objections particularized before this Court, including a few objections that were reserved for further argument or further production of any relevant evidence to be provided by counsel or from the boards of elections' information or documentation. The Court has personally tried the objections county by county beginning with Schenectady, and followed by Montgomery, Albany, and Greene Counties; and hearing in Ulster County proceeded before Court Attorney Referees who followed the rule of the case established in the other four counties, Counsel for the candidates consenting to a large number of objections being resolved by the rulings stipulated by them to have been established by this Court's previous rulings in the four other counties. This Court did not require either side to enter into such stipulation and was fully prepared to try the objections, nor did this Court participate in the negotiations of the parties leading to these stipulations, accordingly the Court has no way of determining if the items stipulated/agreed by the parties to be the same factual and legal issues ruled upon by this Court were in fact ike same legal and or factual issues decided by this Court previously - as many of these decisions are fact specific and the Court has not been advised of the factual background of these objections. This Court does acknowledge such stipulations/agreements facilitated the prompt disposition of this matter. The Court viewed the Affidavits, envelopes, in some cases the ballots, and supporting documents of the individual Boards including registrations, sometimes referred to as "buff cards, or electronic copies of the signatures sometimes referred to as the "dump", and in some -7-

cases "mailers'5 and postcards, sometimes referred to as "mail checks", "returned to the several Boards by the Postal Service (with form notices stamped on them such as "return to sender", "insufficient address", !Cno forwarding address:, "insufficient postage", etc.) and some records from the Department of Motor Vehicles ("Motor-Voter'" registrations) that were part of the Boards' files. The Court also heard sworn testimony from the Commissioners, and in some cases Deputy Commissioners, regarding the regular procedures and routines employed by the individual Boards including their date stamping procedures, logging of the application for absentee ballots and "walk ins" sometimes referred to as "OTC" (over the counter) applications for and delivery of absentee ballots. In some instances the Commissioners explained that some Affidavits were not time stamped by the board or were time stamped late by the board but explained the circumstances establishing that they were timely received in spite of no stamp or a late board stamp and reference to the testimony of the witnesses explains certain of the court's rulings determined by the evidence, which will not be marshalled in this order, but all of said transcripts and the findings therein shall be deemed "So Ordered" as a part of this decision. Similarly this Court will not support the following ordered paragraphs by reference to the particular evidence involved other than to indicate the record supports the findings and the order. Marking and Exhibits Documents regarding each questioned Affidavit, Application, Absentee Ballot, or other Ballot were marked with the first letter of the county and numbered progressively through the election district (ex: AL being the first Albany objection) and following the "particulars" or spread sheet agreed upon by counsel, and the voter was referred to by the same letter and number (Al rather than "John Doe"), except in the rare case when the name of a voter was used. The Court repeatedly reminded the Attorneys and the Commissioners of their continuing duty to -8-

safeguard the privacy of voters and how or even whether they voted. The Boards retained the marked items, and they were and are under a continuing order to securely retain them in their marked condition pending further court or appellate review, for a period of not less than 90 days or until further order of a court of competent jurisdiction. Miscellaneous - Other Issues On December 4, 2012 Petitioner made an oral application to preclude Respondent from prosecuting objections to the casting and canvassing of ballots, responsive argument was heard and denied (and reduced to written Order dated December 7, 2012), and on December 7, 2012 Respondent filed an Order to Show Cause (Index No. 2012-969) for permission to file a timely cross-claim, which was immediately heard and granted in part from the bench (and reduced to written Order signed on December 12, 2012) upon the conditions previously imposed \vhen the issue was raised on the Petitioner's oral motion of December 7. By the Ordered paragraph below the Court directs the consolidation of these matters with and under Index No. 2012-887. On December 10, 2012 a stay was issued by the Appellate Division Third Department of Supreme Court, which prevented the Respondent Boards of Election from bursting and canvassing any ballot determined to be valid, and Counsel for Petitioner and Appellant continued to litigate the "ballot envelope" and other issues in Ulster County before the Court Attorney Referees; and this Court sought by letter that Counsel make its record final as to all issues, other than those which would arise upon the stay being lifting and the ballots burst and canvassed, and both candidates' Counsel did confirm there was no further evidence to be presented. Petitioner's Counsel represented and Respondent's Counsel agreed that a proposed Order was necessary for the Appellate Division record concerning this Court's canvassing methodology and stay of the proceedings in Ulster, and same was signed on December 12, 2012, but on -9-

reflection it appears that the Order may have been one for the Appellate Division to issue. By Decision and Order on Motion decided and entered on December 13, 2012 the motion was denied by the Appellate Division and the stay lifted, and this Court proceeded to immediately schedule the bursting and canvassing of ballots followed by the hearing of ballot' objections as follows: Schenectady, Montgomery and Albany on December 14, and Greene on December 17, in Fonda; and Ulster at the Board of Elections in Kingston before the Court Attorney Referees on December 14, 2012. The procedure for copying and marking the ballots as Ordered by this Court on December 7 was streamlined (for Greene and Ulster only) by agreement of the parties and approved by the Court to ensure preservation of the exhibits for judicial and appellate review (such an agreement had been anticipated and allowed for in prior orders subject to court approval and this Court has approved the same). Approval of the Referees' Reports The Court has before it and has reviewed the transcript of proceedings before the Court Attorney Referees, and the Referee's Report dated December 13, 2012 submitted by Court Attorney Referees Diane Clerkin, Esq.: and Stephen H. Judd, Esq., attached hereto, which is approved and incorporated herein and So Ordered with one qualifying observation, that the Commissioners in Ulster County are cautioned to take corrective action regarding Poll Workers Special Ballots in the future. Under the facts presented, the Court Attorney Referees were required to render the ruling they did and the Court is constrained to approve same. The Court cautions the Ulster County Board of Elections Commissioners, that they cannot take for granted the votes of their own poll workers, nor can they allow an exception to compliance with the statutory requirements. It appears poll workers were not instructed correctly, however, the poll • workers, as voters, have a responsibility, just as do all voters, to use their own independent -10-

>
judgment, to read the instructions and to comply with the law. The poll workers are trained to assist the average voter to comply with the law and their conduct gives-the Court concern. On the evidence presented the Court can only approve the rulings of the Court Attorney Referees sustaining the objections to these special ballot envelops for noncompliance by the voters1. The Court has before it and has reviewed the transcript of proceedings before the Court Attorney Referees, and the Referees' Reports dated December 17, 2012 and Revised Report dated December 18, 2012, and the Reports are approved and incorporated herein and So Ordered with the following modifications. Regarding Court Attorney-Referee Stephen Judd Esq's report, the Court notes that the attorneys for the candidates stipulated and agreed to the procedure used to open, mark, inspect and object - that was employed, and that while the identifying markings for the voters/envelopes/ballots were not listed in the report, they are clearly indicated on the record as revealed by review of the transcript. The Court also notes that there was one objection to a ballot on the record at page 39 of the December 14, 2012 transcript. The Commissioners unanimously ruled the ballot within U525 Affidavit envelope should be void and not voted because the envelope contained another object which was the Court Order allowing the Voter to vote (objection to the validity of the Court Order was previously, and correctly, overruled) which would identify the voter. The Commissioner's statements at the hearing indicate the Ulster County Inspectors are trained to separate Court Orders and send them back to "us" (the Board of Elections). The Attorney disagreeing with the ruling inquired of the Commissioner if the Inspectors filled out a "challenge

'By Order to Show Cause application returnable on December 20, 2012 two poll workers seek to intervene in this matter. -11-

report" for the person on that day and Commissioner Turco responded, "We don't require them to do that. That's not part of our procedure. Our procedure with the Court order, if the Court order is issued by the Supreme Court and brought to the poll site they proceed to their district. They hand the court order to the inspector. The inspector will then mark the court order on the upper right-hand column with the stub number from the ballot for the voting system. Then the voter proceeds to vote. The court order comes back to us with the marked stub number. That's the only procedure we have." In other circumstances this Court ruled that material given to the voter by the board (the substance of a ballot question, and nothing more) with no identifying information, did not void the ballot. In this instance the circumstances indicate the voter, him or herself, inserted the Court Order, which would identify the voter. Absent proof supporting a contrary finding, the Court Attorney-Referee correctly affirmed the Commissioners' ruling that the ballot was void and could not be voted. Regarding the Revised Referee's Report of Court-Attorney Referee Diane Clerkin, Esq., this Court notes the transcript of the proceedings makes clear that the first group of ballots reviewed consisted of 26 ballots (the 25 listed plus Ul) and that in addition to three blanks there were three empty envelopes so that the indicated vote total (twenty) from this group is correct. In the second group there was also one ballot that was stipulated to be void and not to be voted in addition to the two blanks making a total of 25 ballots that were correctly accounted for. In the third group, 32 marked ballots were opened'plus 3 unmarked ballots (that, by stipulation, were not marked and were to be voted) and again one of these 35 ballots was stipulated to be void and not counted, so that the total voted (34) is correct.

-12-

DETERMINATION A myriad of applications and legal arguments have been presented to the Court, the}' have been considered and ruled upon at various stages in this proceeding, and need not be further detailed or referenced in this Decision and Order, other than to say all were considered. NOW, upon consideration of all of the pleadings, applications, memorandum of law, and submissions and upon all of the evidence, the Court sets forth its determinations as to the marked exhibits for all counties as hereinafter Ordered: ORDERED PARAGRAPHS Schenectady County ORDERED, adjudged and decreed that the following objections in Schenectady County are withdrawn upon application of the parties: Sll, S36, S573 S63, S66, and S68 (S36 being a stipulation that the ballot will not be counted and S57 being an empty envelope, these will not be voted), and the board is to process and vote ballots SI 1, S63, S66, and S68 as ordered; ORDERED, adjudged and decreed that the following objections are overruled in Schenectady County: S2} S3, S4, S5, S6, S8, S12, S13, S14, S16, S23, S24, S26, S28, S30, S32, S33, S34, S39, S41, S44, S45, S46, S47, S48, S51, S58, S61, S64, S71, (the Court indicated during the trial that it would consider any forther relevant evidence on several items including S33, S45; S48, and S61 and no further evidence that would effect the Court's decision has been proffered) the board is to process and vote these ballots as ordered; ORDERED, adjudged and decreed that all other objections in the County of Schenectady are sustained, and accordingly the following items are not to be processed or voted in relation to the 46th Senate Race: SI, S7; S9, S10, S15, S17, S18, S19, S20, S21, S22, S25, S27, S29, S31, S35, S36, S37, S38; S40, S423 S43, S49, S50, S52, S53, S54, S55, S56, S59, S60: S62, S65, S67,

S69, S70, S72, S73 on the basis of the original objection as stated by the respective candidate's Counsel or as indicated on the record, and in the case of S36, S67; and S73 they are not to be voted by stipulation of the parties; Montgomery County ORDERED, adjudged and decreed that the following objection was withdrawn upon application of the parties in Montgomery County: M20, and accordingly that ballot may now be processed and voted as ordered. ORDERED, adjudged and decreed that the following objections are overruled in Montgomery County: M3, M4, M5, M6, M7, MS, M9, Ml 1, M12, M13,M14, M15, M16, M17, M18, M19, M21, M22, M23, M24, (Re: M24 the Court had indicated it's ruling but allowed for further proof, none was offered), M25, M27, M29, the board is to process these items and vote them as ordered; ORDERED, adjudged and decreed that all other objections in the County of Montgomery are sustained, Ml, M2, M10, M26, M28 are not to be processed or voted in relation to the 46th Senate Race on the basis of the original objections as stated by the respective candidate's Counsel, or as indicated on the record; Albany County ORDERED, adjudged and decreed that the following objections in Albany County are withdrawn upon application of the parties: A12, A17, and accordingly those ballots (A 12 and A17) may now be processed and voted as ordered; the record indicates A16 represented a "Board" objection, to a purported "out of state" ballot or affidavit, and that the candidates withdrew objection, if any, and the document, A16, if it exists, will not be processed nor voted;

-14-

ORDERED, adjudged and decreed that under all of the circumstances and evidence presented the following objections are overruled in Albany County: Al, A2, A4, A5,[A4 and A5 involve the reserved-on hearsay issue, the Court having sustained the objection to hearsay] A6: A7, A14, A18, A22, A23; A26, A30, A35, A36, A3S, A39, A40, A41, A42, and A43; accordingly those ballots/envelopes may now be processed and voted as ordered; ORDERED, adjudged and decreed that all other objections in the County of Albany are sustained, on the basis of the original objection or as indicated on the record herein, including: A3, A8, A9, (the voters in A8 and A9 having testified that they did not live in Albany County and/or registered to vote in another county and in one case actually received an absentee ballot for the 2012 general election from another county [which was not voted]), A10, Al 1, A13, A15, A19, A20, A21, A24, A25, A27, A28, A29; A31, A32, A33, A34, A37.are not to be processed or voted in relation to the 46th Senate Race; (A27 was reserved on, although the Court was inclined to grant the objection the court did allow additional information, none has been received, therefore the objection is sustained); Greene County ORDERED, adjudged and decreed that the following objections are withdrawn upon application of the parties in Greene County: G173 G54, G55, G58, G80, G81, GS2, GS3, G102, G104, G106; G112, G115, G116, G117, G119, G132; G133, G134, G135, G136, G138, G144, G145, G148, G15L G152, G15S, G159, G160, G161, G162, G163, G164, G166, G167, G171, G172, G173, G176, G178, G183, G184, G187, G1953 G1963 and these items may now be processed and voted as ordered; ORDERED, adjudged and decreed that the following objections are overruled in Greene County: G43 G6, G8, G9, G14, G15, G19, G21, G22, G25, G27, G2S, G30, G31, G32; G34 G38; -15-

marked items in their possession, for not less than 90 days or pursuant to further order of a court of competent jurisdiction. Said Order issued from the bench and on December 18, 2012 said order, in writing, was made applicable to all five counties including the Ulster County Board of Elections (which was not present before this Court in Fonda, New York). AND it is FURTHER ORDERED that the Certification results of the 46th Senate District election results provided to this Court are as follows:

County Albany Greene
Montgomery

GEORGE A. AMEDORE, Jr. 13,920 11,268
11,009

CECILIA F. TKACZYK ' 16,368 7,914
6,266 7

OTHER 20

Schenectady
Ulster TOTALS: AND it is

10,983
15,961 63,141

7,515
25,041 63,104 27

ORDERED, ADJUDGED and DECREED that based upon the Certifications from the Boards of Election in the 46th Senate District and tabulation of the totals, that GEORGE A. AMEDORE, Jr. is declared the winner; and it is ORDERED and DIRECTED that the proceedings filed under Index No. 2012-969, RJI 298-1-2012-0436 are consolidated with Index No. 2012-887, RJI 28-1-2012-0383, nunc pro tune as of the date of filing, and all matters related thereto shall be filed under Index No. 2012-887. This constitutes the Decision and Order of the Court. SO ORDERED. Dated: December 18, 2012 ENTER -17HON. GUY P. TOMLINSON, Acting J.S.C.

OR1GNAL

1. ORDERS:
Fourth Judicial District Administrative Order 4JD-112-20120 signed on September 5. 2012 Order to Show Cause - Index No. signed on November 7, 2012 Stipulation and Order signed and SO ORDERED on November 9, 2012 Letter-Supplemental Order dated November 13, 2012 Letter-Order dated November 19, 2012 Letter-Order November 21,2012 Letter November 30, 2012 Order dated December 7, 2012 (subpoena modification) Order (Subpoena Duces Tecum) dated December 10, 2012 (voter names redacted to initials) Order (Schenectady County) dated December 4, 2012 Order (Montgomery County) dated December 5, 2012 Order (Albany County) dated December 5, 2012 Supplemental and Amended Order (Albany County, Greene County, Montgomery County, Schenectady County, Ulster County) dated December 7, 2012 Letter "SO ORDERED" dated December 10, 2012 Order (Application to Dismiss) dated December 7, 2012 Order to Show Cause (by Respondent) dated December 7, 2012 Order dated'December 12, 2012 (on Respondent's OSC) Order dated December 12, 2012 (submitted as required for appellate purposes) Order to Show Cause and Stay (Appellate Division Third Department) dated December 10, 2012 Letter-Order dated December 11, 2012 Decision and Order on Motion (Appellate Division Third Department) dated December 133 2012 Letter-Order dated December 13, 2012 Order (Certification by Boards of Election to the Court) dated December 18, 2012

-18-

MONTGOMERY COUNTY
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONTGOMERY In the Matter of George A. Amedore, Jr., Petitioner,

12 DEC 19 PH 2: 16

CLERK'S OFF!PC" FONDA.NEW YORK

vs.
Gregory Peterson, Douglas Kellner, James Walsh, and Evelyn Aquila, Commissioners constituting The New York State Board of Elections; and Jamie M. Duchessi and Terrance J. Smith, Commissioners, constituting The Board of Elections for Montgomery County, and C. Victor Work and Thomas F. Turco, Commissioners, constituting The Board of Elections for Ulster County, and Thomas J. Burke and Brent Bogardus, Commissioners, constituting The Board of Elections for Greene County, and Matthew J. dyne and Rachel L. Bledi, Commissioners, constituting The Board of Elections for Albany County, and Brian Quail and Art Brassard, Commissioners, constituting The Board of Elections for Schenectady County, and Michael J. Amato, Sheriff of Montgomery County, and The Sheriffs Department of Montgomery County Paul VanBlarcum, Sheriff of Ulster County, and The Sheriffs Department of Ulster County, FINAL REFEREE'S REPORT Index No. 2012-887

r
Gregory R. Seely, Sheriff of Greene County, and The Sheriffs Department of Greene County, Craig Apple, Sheriff of Albany County, and The Sheriff's Department of Albany County, Dominic Dagostino, Sheriff of Schenectady County, and The Sheriffs Department of Schenectady County, and Cecilia F. Tkaczyk, Candidate for the New York State Senate 46th Senate District, Respondents.

Pursuant to the Letter-Order of December 13, 2012 (Tomlinson, J.), 1 presided over the ballot opening and review process before the Ulster County Board of Elections on December 14, 2012. Prior to commencing I reviewed the procedure set forth on page 4 of Judge Tomlinson's Supplemental and Amended Order dated December 7, 2012. At the suggestion of Commissioner Thomas F. Turco, however, and with the consent of the parties, that procedure was modified and we proceeded as follows: 1. 30 envelopes were opened and the ballots were marked on the back in red ink with the corresponding identifying exhibit number on the envelope; the ballots were then shuffled and opened; the Commissioners checked the back of each ballot to ascertain if there were any marks thereon; Commissioner Turco then announced what the ballot listed on Line 6; each attorney was then given an opportunity to examine the

2. 3.

4.

5.

front of the ballot and to make an objection. If there were an objection, the Court would photocopy the envelope and ballot, If there were no objection, then the original ballot was to be put back into the envelope. Following that procedure, 115 envelopes were opened and the ballots counted. There were no Objections. The results were: 6A 69 6B 23 6C 5 6D 5 6E 2 6F 4 Blank J7 115 And combining this with the opening of the withdrawn objections before Court Attorney-Referee Diane Clerkin, Esq., the Ulster County Board of Elections final tabulation is as set forth in the attachment hereto.

Dated: December 18, 2012

Stephen H, Court Attorney-Referee

Start Total Objections Withdrawn Total Objection Over Ruled 12-14-12 Total Candidate Total 12-14-2012 at 11:25 am
83

Tkaczyk Amedore 24913 15906

50
78

25
30

115
198

128 25041

55

15961

I have read the transcripts of these proceedings and hereby (accept) (reject)((modify) t\e recommendations of the Cou

MONTGOMERY COUNTY
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONTGOMERY _ %• In the Matter of GEORGE A. AMEDORE. JR.. Petitioner. -againstGREGORY PETERSON, DOUGLAS KELLNER. JAMES WALSH, and EVELYN AQUILA, COMMISSIONERS constituting The New York State Board of Elections; and JAMIE M. DUCHESSI and TERRANCE J. SMITH Commissioners, constituting the Board of Elections for Montgomery County, and C. VICTOR WORK and THOMAS F. TURCO Commissioners, constituting The Board of Elections for Ulster County, and THOMAS J. BURKE and BRENT BOGARDUS Commissioners, constituting The Board of Elections for Greene County, and MATTHEW J. CLYNE and RACHEL L. BLEDI Commissioners, constituting The Board of Elections for Albany County, and BRIAN QUAIL and ART BRASSARD Commissioners., constituting The Board of Elections/ for Schencctady County, and MICHAEL J. AMATO", Sheriff of Montgomery County, and The Sheriffs Department of Montgomery County PAUL VAN BLARCUM, Sheriff of Ulster County, and The Sheriffs Department of Ulster Count}' GREGORY R. SEELY, Sheriff of Greene County, and The Sheriffs Department of Greene County CRAIG APPLE, Sheriff of Albany County, and The Sheriffs Department of Albany County DOMINIC DAGOSTINO, Sheriff of Schenectady County, and The Sheriffs Department of Schencctady County, and CECILIA F.TKACZYK.. Candidate for the New York State Senate 46th Senate District, Respondents.

12 DEC 19 PH 2- 16 CLERK'S OFFICE FOHDA,NEW YORK

REVISED REFEREE'S REPORT INDEX No. 2012-887

Pursuant to the letter Order of-the Court dated December 13, 2012 (Tomlinson, J.)- Court Attorney-Referee Stephen H. Judd and I presided over the ballot opening and review process at the Ulster County Board of Elections on December 14:2012. Court Attorney-Referee Stephen H. Judd presided over the opening of ballots that had previously been ruled upon or subject to a stipulation by the parties. I presided over the opening of those ballots to which objections had been withdrawn. Commissioner Victor Work and Deputy Commissioner Judy Horvers of the Ulster County Board of Elections and counsel for the parties were present during the opening of such ballots. The following twenty-five (25) envelopes previously marked were opened: U-9. U-10, U-13, U-l 7, U-25, U-3L U-32, U-33, U-46, U-50, U-77, U-80, U-81, U-93, U-100, U-10LU-110..U-139, U-147, U-204, U-206, U-212, U-213.. U-220 ; U-221. Three of the envelopes were empty (U-10, U-100 and U-l 10). Additionally, there was a ballot previously marked as U-l in the group to be reviewed and cast. Following a review of the ballots and there being no objection by either party, the ballots contained in such envelopes were shuffled and cast, together with the one (1) ballot, as follows: 6A:9 6B:7 6C: 1 6D:'2 6E: I 3 blank. Thereafter, the following twenty-five (25) envelopes previously marked were opened: U-222; U-22S, U-229, U-234, U-236, U-239, U-240, U-247, U-254, U-256, U-257, U-263, U-272, U-287: U-291, U-295, U-296.. U-299, U-301, U-306, U-307, U-316, U-325, U-326, U-347. Following a review of the ballots, the parties stipulated that one ballot, which had been signed by the voter was invalid and would not be cast.1 There being no other objection by either

'In so far as any objection to the envelope had been withdrawn and the panics stipulated that the signed ballot was invalid, the ballot was not marked.
-9-

party, the ballots contained in such envelopes were shuffled and cast, as follows:

Thereafter, the following thirty-two (32) envelopes previously marked were opened:2 U-383, U-437: U-44L U-448: U-457, U-462, U-465, U-467, U-469: U-471. U-475, U-477, U-479, U-4S2, U-483, U-484, U-487, U-488, U-492, U-500, U505, U-506, U-512, U-515, U-516, U-517, U-518, U-521, U-532: U-348, U-349, U-351. In addition, three (3) envelopes, not marked" but stipulated by the parties to be opened, were opened.3 Following a review of the ballots, the parties stipulated that one ballot, which had been signed by the voter was invalid and would not be cast.'1 There being no other objection by either party, the ballots contained in such envelopes were shuffled and cast, as follows: 6A: 17 6B:6 6C:0 6D:4 6E: I 6F: 5 1 blank

'These marked envelopes were not opened in sequential order. •'These three (3) envelopes had been previously set aside by the Board of Elections to provide the parties with further information regarding registration. Since no objection, was made with respect to these envelopes, the envelopes were not marked. On December 1 1, 2012, the parties once again had an opportunity to review the envelopes and stipulated that the envelopes should be opened and the ballots cast. so far as any objection to the envelope had been withdrawn and the parties stipulated that the signed ballot was invalid, the ballot was not marked.
-j4 In

The final tabulation of the Board of Elections of Ulster County, including those envelopes opened before Court Attorney-Referee Stephen H. Judd, is attached to the Final Report of Court Attorney-Referee Judd. Dated: December 18,2012 Respectfully submitted,

Diane Clerkin Court Attorney-Referee

I have read the. transcripts of these proceedings and hereby hereinabove recommendations of the Court Attorney-Referee _, " SO ORDERED: Dated: December(8, 2012

HON. GUY P. TOMLINSON Acting Justice of Supreme Court
Q

ENTER

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONTGOMERY In the Matter of George A. Amedore, Jr., Petitioner,
vs.

OR GINAL

Gregory Peterson: Douglas Kellner, James Walsh, and Evelyn Aquila, Commissioners constituting The New York State Board of Elections; and
rn

m j rn

Jamie M. Duchessi and Terrance J. Smith. Commissioners, constituting The Board of Elections for Montgomery County, and C. Victor Work and Thomas F. Turco, Commissioners, constituting The Board of Elections for Ulster County, and Thomas J. Burke and Brent Bogardus, Commissioners, constituting The Board of Elections for Greene County, and Matthew J. Clyne and Rachel L. Bledi, Commissioners, constituting The Board of Elections for Albany County, and Brian Quail and Art Brassard, Commissioners, constituting The Board of Elections for Schenectady County, and Michael J. Amato, Sheriff of Montgomery County, and The Sheriffs Department of Montgomery County Paul VanBlarcum, Sheriff of Ulster County, and The Sheriffs Department of Ulster County.

re ro
:x

<^3 o^
c:

REFEREES' REPORT Index No. 2012-887

r~

Gregory R. Seely, Sheriff of Greene County, and The Sheriffs Department of Greene County. Craig Apple, Sheriff of Albany County, and The Sheriffs Department of Albany County. Dominic Dagpstino, Sheriff of Schenectady County, and The Sheriffs Department of Schenectady County, and Cecilia F. Tkaczyk, Candidate for the New York State Senate 46"1 Senate District Respondents.

On December 7, 2012, Diane Clerkin, Esq. and Stephen H. Judd, Esq., both Court Attorney-Referees, were assigned to hear and determine or hear and report in these proceedings relative to the determination of all issues concerning this matter pursuant to the Administrative Order of the Chief Administrative Judge of the Courts dated December 7, 2012 (AO/527/2012). By Order of the Court (Tomlinson. J.) dated December 7, 2012, hearings before Court AttorneyReferees were directed to commence on December 10, 2012 relative to the objections made to ballots received by the Ulster County Board of Elections. The attorneys for the candidate parties would not consent to our hearing and determining the issues, therefore we proceeded to hear and report, and do hereby report our findings: 1. The parties requested an opportunity to meet privately in an attempt to

limit the number of issues to be tried. The Court granted that request, and with the consent of the parties, instructed the Board of Elections to use the time to mark the ballot envelopes and/or ballots at issue as objections U-l through CJ-532. When the hearing reconvened, the parties

stipulated on the record that they withdrew 78 objections, that the Court should sustain 238 objections and overrule 56 objections based upon the prior rulings of the Court1, and that the Court would determine the remaining 165 objections.2 2. The Court then addressed all the objections to ballot envelopes relating to

violation of Election Law § 11-302 (U-8, U~36 ; U-59, U-7L U-82, U-l 16, U-137, U-l 62, U1655 U-177, U-178, U-l79, U-218, U-224, U-228, U-242, U-243, U-281, U-282, U-287, U-302, U-309, U-313, U-327, U-338, U-341, U-353, U-354, U-36S, U-371, U-372, U-3S7, U-388, U- • 391, U-393, U-394, U-395, U-410, U-412, U-413, U-414, U-415 5 U-416, U-417, U-429; U-431S U-434, U-460, U-461, U-473; U-497, U-504, U-524). The Court took testimony from Commissioner Victor Work and Commissioner Thomas Turco. then heard oral argument from the parties, and after reading and considering David L. Lewis, Esq.'s Memorandum of Law dated November 30, 2012, Frank G. Hoare, Esq.'s letter Memorandum dated November 30, 2012, and David L. Lewis, Esq.'s Memorandum of Law dated December 10, 2012, the Court AttorneyReferees were both of the opinion that the Court should SUSTAIN all 53 objections relative to a violation of Election Law § 11-302 since this was tantamount to early voting, that these ballots were cast prior to October 23, 2012 in contradiction to the statute, and that this was contrary to the expressed mandate contained on the face of the special ballot application marked as Petitioner's Ulster County Exhibit No. 1 not to vote sooner than two weeks prior to the election. 3. The Court next addressed objections to the Judge-ordered ballot cases (U-

18, U-143, U-l 94, U-525). In each of these matters, a Judge had issued an Order directing the

'The parties nonetheless preserved their right of appeal to these objections.
2These

numbers total more than 532 as some objections fall into more than one category.

Board of Elections to register and permit, upon affidavit submitted, the voter the opportunity to vote in the subject general election. Commissioners Turco again testified, and following legal arguments, the Court Attorney-Referees were both of the opinion that these four objections should be OVERRULED as the Court Is without appellate authority to overturn or overrule or otherwise supercede authority to overturn a valid court order. 4. The proceedings then were split, with Court Attorney-Referee Clerkin

presiding in one room and Court Attorney-Referee Judd presiding in the other room.
X

was issued by the Third Department but that the hearings on the ballot envelopes were not sta)'ed, only the canvassing of the ballots. On December 11. 2012 the proceedings were reconvened, but before proceeding, the Court sought clarity from the parties as to the intent and effect of the Appellate Division Third Department's Order to Show Cause and Stay dated December 10, 2012. Although all parties confirmed that the stay only extended to the bursting of the ballots, the Court was unwilling to proceed without guidance since the Order recited that it stayed the Orders of the Supreme Court, Tomlinson, J.. in all respects. Therefore, and with the consent of the attorneys for the parties, the Court placed a conference call to the Hon. William McCarthy, Third Department Appellate Division Justice, who orally authorized and ordered that the proceedings continue and asked Petitioner to provide a revised Order to memorialize same. . 8. The Court then conducted 15 different trials on objections to residency and

'Objection sustained as to the Office of President and U.S. Senator and overruled as to the remainder. Objection overruled as to all offices but President and U.S. Senator. NOTE: A PROCEDURAL ERROR IN COORDINATING THE PROCEEDINGS CAUSED BOTH COURT ATTORNEY-REFEREES TO HEAR U-293, U-294 AND U-297, HOWEVER, EACH MADE THE SAME RULINGS.

determined that objections marked as U-161. U-164, U-278, U-36L U-370, and U-466 should be SUSTAINED; U-55, U-61, U-66: U-277, U-317, U-331, U-481 and U-522 should be OVERRULED; and U-263 and U-479 were WITHDRAWN. 9. The Court inquired as to whether the attorneys had anything further, and

when they stated that they did not, the Court closed the record.

Dated: December

5 2012

__ Stephen H. Judd Court Attorney-Referee

.

Dated: December/5 , 2012 Diane Clerkin Court Attorney-Referee

ORIGINAL

determined that objections marked as U-16L U-164, U-27S, U-361, U-370: and U-466 should be SUSTAINED; U-55, U-61, U-66; U-277; U-317, U-33L U-481 andU-522 should be OVERRULED; and U-263 and U-479 were WITHDRAWN. 9. The Court inquired as to whether the attorneys had anything fiirther, and ' .

when they stated that they did not, the Court closed the record.

Dated: December/^, 2012 Stephen H. Judd Court Attorney-Referee

Dated: December

,2012 Diane Clerkin Court Attorney-Referee

OR1GNAL

I have read the transcripts of these proceedings and hereby (accept) (rejecff (modify) hereinabove recommendations of the Court Attorney-Referees.,

Dear Ms. Ross: Attached please find tabulated results for the Albany County component of the 46th Senate District, which we hereby certify as true and complete. We are forwarding the original tabulated statement by mail. Matthew J. Clyne Albany County Board of Elections 32 North Russell Road Albany, NY 12206

518-487-5074

Confidentiality Notice: This fax/e-mail transmission, with accompanying records, is intended only for the use of the individual or entity to which it is addressed and may contain confidential and/or privileged information belonging to the sender, including individually identifiable health information subject to the privacy and security provisions of HIPAA. This information may be protected by pertinent privilege(s), e.g., attorney-client, doctor-patient, HIPAA etc., which will be enforced to the fullest extent of the law. If you are not the intended recipient, you are hereby notified that any examination, analysis, disclosure, copying, dissemination, distribution, sharing, or use of the information in this transmission is strictly prohibited. If you have received this message and associated documents in error, please notify the sender immediately for instructions. If this message was received by e-mail, please delete the original message.

General Election 11/06/2012 STATEMENT OF CANVASS This document shall serve as the STATEMENT OF CANVASS of GREENE COUNTY BOARD OF ELECTIONS, in relation to the votes cast at the General Election held on The GREENE COUNTY BOARD OF ELECTIONS, being custodian of election records, and after having met for the purpose of canvassing the votes cast at said election, DO HEREBY CERTIFY THE ATTACHED, AS A SUMMARY OF SAID VOTES. In Witness thereof, we have set our hands, and caused the seal of said Board of Elections to be affixed. Sworn this date, CATSKILL, NY.

This document shall serve as the interim STATEMENT OF CANVASS (total votes only) of the Schenectady County Board of Elections, in relation to the votes cast at the General Election held on the sixth day of November in the year two-thousand and twelve In and for the County of Schenectady in the 46* Senate District for the Office of State Senator pursuant to the ORDERS of the Supreme Court of the State of New York, Montgomery County, the Honorable Guy P. Tomlinson presiding, with the reservation that further action of the Court of Appeals may change these totals. This certification is to the court, and a certification to the State Board of Elections shall not occur until the injunction restraining the Schenectady County Board of Elections is duly lifted.
GEORGE A AMEDQRE, CECELIA F, TKACZYK 10,983 7,515

Vote totals for all other offices, as changed by the aforesaid canvass of the objected to ballots, will be amended, and certified forthwith. x-7 In Witness Whereof, we have set our hands and caused 'the seal oftheSv Elections to be affixed, being sworn this date, December M m2pd^t^ctcdiy, New

of the Board of Elections of the County of Ulster in relation to the votes cast in the General Election, November 63 2012 in the 46th State Senate District.
The Board of Elections of the County of Ulster having met at the office of said Board, under the orders of the Supreme Court of the State of New York, to canvass the votes given in the Election Districts of said County, at the General Election held on the sixth day of November in the year aforesaid, do certify as follows: That it appears on such estimate and canvass that the whole number of votes given for the candidates for the nomination for: State Senate - 46th District
Candidate Beginning Total Objections Withdrawn Objections Over Ruled Total Objections Candidate Total Cecilia F. Tkaczyk 24,913 50 78
128

83

115 193

George A. Arnedore, Jr 15,906 25 30
55

Blanks/Voids

8 7 15

25,041

15,961

WE CERTIFY this statement to be correct, and have caused the same to be attested by the signatures of the members of this Board, there being four members in said Board, this 18th day of December, A.D. two thousand and twelve.